During defendant's trial for possession with intent to distribute a substance containing cocaine base, trial judge's instruction to a detective, a prior prosecution witness, to come to the front of the courtroom in response to the pro se defendant's cross-examination question to the arresting officer for "proof" that the arresting officer and the detective were identical twins, was a proper exercise of discretion under FRE 611(a); the show-up arranged by the judge avoided needless testimony, expenditure of time and waste of resources. It was not an expression of bias against the defendant, in United States v. Boling, 648 F.3d 474 (7th Cir. May 24, 2011) (No. 09–3479)
FRE 611(a) provides the trial judge with discretion to use a manner of receiving evidence that departs from the usual sequence of question and answer. As reflected by the Advisory Committee Notes to FRE 611(a), the rule was drafted to avoid:
detailed rules to govern the mode and order of interrogating witnesses presenting evidence [which] is neither desirable nor feasible. The ultimate responsibility for the effective working of the adversary system rests with the judge. The rule sets forth the objectives which he should seek to attain. Item (1) restates in broad terms the power and obligation of the judge as developed under common law principles. It covers such concerns as whether testimony shall be in the form of a free narrative or responses to specific questions, the order of calling witnesses and presenting evidence, the use of demonstrative evidence, and the many other questions arising during the course of a trial which can be solved only by the judge's common sense and fairness in view of the particular circumstances.ACN FRE 611(a) (citations omitted). The Seventh Circuit recently explored the implementation of FRE 611(a) as allowing a judge to short-circuit the cumbersome presentation of evidence by a pro se defendant.
In the case, defendant Boling was arrested by city police detective Kevin Jackson ("Detective Kevin Jackson"). At the time of the arrest, the detective found the defendant with marijuana, a digital scale and sixteen "individually packed rocks of crack cocaine." After the arrest of the defendant, the detective was provided "back up" by his twin brother, Kent Jackson, who was only an officer with the police department ("Officer Kent Jackson"). Serving as back up during this arrest constituted the only involvement Officer Jackson had with the defendant's case. At the station house, the defendant admitted to the head of the local drug task force (Almaroad) that the packets contained crack cocaine, but contended they were for personal use only.
The defendant was released on bond, but was arrested a week later for selling crack cocaine to an informant in two controlled buys. The buys were recorded by the informant's video and audio. During defendant's resulting trial for possession with intent to distribute a substance containing cocaine base, the defendant elected to represent himself.
At trial, the defense pursued his theory that if the packets contained crack cocaine, it was for his own personal use rather than for distribution, as charged. In addition, the defendant suggested that he was a victim of a conspiracy between members of the local police department, including Almaroad, the drug task force head, and Detective Kevin Jackson and his twin brother, Officer Kent Jackson. His defense concentrated on undermining the credibility of these three members of the police department.
The jury was apparently unpersuaded by the defense and convicted him. The defendant appealed, challenging the trial judge with bias, as demonstrated by the judge's action with respect to the testimony of Detective Jackson and his twin, Officer Kent Jackson. According to the circuit:
While cross-examining Officer Jackson, Boling asked for proof that Detective Jackson was his identical twin. The government suggested allowing Detective Jackson into the courtroom. Though Detective Jackson had already testified, the district judge called him into the courtroom, told him to stand in front of the jury, and then dismissed him.Boling, 648 F.3d at 477.
Defendant's appeal particularly contended that by this action, the trial judge "demonstrat[ed] ... bias against Boling by directing Detective Jackson to enter the courtroom in response to Boling's asking Officer Jackson for proof of whether he and Detective Jackson were identical twins." Boling, 648 F.3d at 479.
The Seventh Circuit rejected this contention, noting that the contention would be assessed for plain error because the defendant ""did not timely object to the judge's actions." The circuit explained that:
Boling has not shown that the district judge's actions constituted an obvious or clear error. A trial judge has discretion to control the mode and order of witness interrogation and evidence presentation. Fed.R.Evid. 611(a). The judge shall exercise this discretion in order to “avoid needless consumption of time.” Id . Here, the district judge instructed Detective Jackson to walk to the front of the courtroom in response to Boling's question to Officer Jackson requesting proof that he and Detective Jackson were identical twins. The district judge likely took this action to avoid unnecessary testimony and evidence from both parties. The district judge's actions conveyed no bias regarding Boling's honesty or guilt. At worst, his actions demonstrated doubts about the relevance of Boling's question. His actions were far from plainly erroneous.Boling, 648 F.3d at 482.
The circuit did not specifically attribute the defendant's self-representation as a cause for arranging a show-up of the detective and officer who were allegedly members of the same conspiracy against the defendant. But this most probably was a factor. The simultaneous show-up of the witnesses precluded what could have involved extensive resources, time and confusion that a pro se attempt to probe the relation of the officer and detective could involve. In addition, no error occurred here, suggested the circuit, given that whether the officers were twins was an issue of questionable relevance. Boling, 648 F.3d at 482.